Former Supreme Court Justice John Paul Stevens and author David Garland have both dived into the national discussion over the death penalty this fall, with the bigger waves being kicked up by the recently retired jurist.
Writing in the New York Times Review of Books, Stevens convincingly challenges the underpinnings of capital punishment in a probing critique of Garland's new book, Peculiar Institution: American's Death Penalty in the Age of Abolition. Doing so, Stevens sheds light on why he began his career as a supporter of capital punishment, under the right conditions, and ended his career an opponent.
Stevens' metamorphosis tracks the conversion of many others – including this newspaper – as they analyze how and why some people are selected for the ultimate punishment.
Quoting his own opinion in a 1977 death penalty case out of Florida, Stevens summed up his previous views: "It is of vital importance ... that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice and emotion."
At the time, states were pushing back against a court decision that essentially imposed a moratorium on executions. What followed was a movement toward narrowly crafted laws intended to root out emotion, build in safeguards and apply capital punishment fairly.
Stevens now writes candidly about a more recent and "regrettable judicial activism" that has loosened restrictions on capital punishment and opened the door once again to abrogation of justice. Prosecutors have a clarified freedom, for example, to root out potential jurors who have qualms about the death penalty and to seek it for non-triggermen.
Stevens now believes the death penalty represents "the pointless and needless extinction of life with only marginal contribution to any discernible social or public purposes."
Stevens and Garland point out one benefit that is glaringly evident in Texas: support for the death penalty "wins votes," the justice says. An NYU law and sociology professor, Garland wrote recently in the Houston Chronicle that "politicians give voters what they want by enacting capital punishment statues even when they will never be enforced."
A deterrent to crime is one supposed benefit for the death penalty, but its imposition is not associated with lower murder rates in the 35 states that allow it. Further, consider this from Garland: Out of 14,000 homicides in the U.S. last year, juries imposed death sentences in only 106 cases. Death is far from a sure punishment for taking a life, nor is it swift. Some death row inmates have been there for decades.
Just in Texas, the sentence is far from evenly imposed. Of the 316 people on Texas' death row, more than a third are from Harris County.
In what should be particularly disturbing in Texas – for obvious reasons – Stevens mentions the "execution of innocents" as if a given. Perhaps that, more than anything, has caused prominent Texans, from a former governor to former prosecutors, to adjust their thinking, as has Stevens, and advocate a saner justice system that guards against a flawed but irrevocable sentence.